Uncertainties Remain for Judicial Takings Theory

Vol. 28No. 6

By
Timothy M. Mulvaney

Timothy M. Mulvaney is an associate professor at Texas Wesleyan School of Law in Fort Worth, Texas.

The U.S. Supreme Court waded into the waters of judicial takings in summer 2010 with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the Court decided that Florida gulf-front property owners are not entitled to compensation under the U.S. Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed, the case leaves the legal landscape at the intersection of public and private property rights in a haze. This is because four justices endorsed a “judicial takings” theory that, moving forward, would make the Takings Cause—“nor shall private property be taken for public use, without just compensation”—applicable to a new, broad set of circumstances.

The case involves a Florida law that authorized the use of public funding to restore sand on eroded beaches to protect coastal property from hurricanes. In 2003, the city of Destin and Walton County sought permits to add 75 feet of sand along a 6.9-mile shoreline. Most waterfront landowners welcomed this complimentary shore protection, but a small group objected to the project on the ground that the new beach area would be open to the public and would redefine the boundary of their property. These plaintiffs argued that they deserved compensation because the legislation “took” their pre-existing right to retain exclusive ownership up to the water’s edge and also denied them their right of ownership to any natural accumulations of sand in the future.

The Florida Supreme Court held that the landowners never had either of these alleged rights under Florida law, and, thus, no compensation was due. In appealing this decision to the U.S. Supreme Court, the landowners modified their takings claim. Although the Takings Clause traditionally has been applied only to actions by the legislative and executive branches of government, the landowners no longer focused their suit on the Florida legislation authorizing beach restoration or on the actions of the state executive agency—the Florida Department of Environmental Protection—charged with promulgating regulations to facilitate the execution of that legislation. Instead, they challenged the Florida court’s decision by exhuming the theory that the judiciary can so significantly reinterpret established state law that the court’s decision itself constitutes a taking requiring compensation under the federal Constitution.

Theory of judicial takings. The judicial takings doctrine on which the property owners relied has a very limited history. After the U.S. Supreme Court had made veiled references to the theory in the late 19th century, Justice Potter Stewart discussed it in some detail in his concurrence in Hughes v. Washington, 389 U.S. 290, 294–98 (1967). It would be almost 30 years before another member of the Supreme Court raised the prospect of judicial takings. In dissenting from the denial of certiorari in Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994), Justice Antonin Scalia, joined only by Justice Sandra Day O’Connor, wrote that the federal Takings Clause may be implicated if a state court invokes “nonexistent rules of state substantive law.” Relying on the premise espoused by Justices Stewart and Scalia in these prior cases, the plaintiffs in Stop the Beach Renourishment claimed that the Florida Supreme Court’s declaration that the alleged property rights never existed was so unpredictable in light of state precedent that they deserved compensation.

Delving into state property law: Accretion and avulsion. These Floridian landowners, however, failed to convince even one member of the U.S. Supreme Court that a taking had occurred. In a unanimous opinion in which the Justices engaged in the rare task of delving deep into state common law, the Court explained that all property in Florida seaward of the Gulf of Mexico’s mean high-water line belongs to the state, while gulf-front property owners ordinarily own the land or beach between that line and their homes. The Court stated that Floridian gulf-front owners have the right to naturally occurring, imperceptible additions of land over time. Under this doctrine of “accretion,” the public-private property boundary is dynamic, changing as the beach naturally expands or erodes. The Court explained, however, that sudden “avulsive” events do not change the property boundary in Florida. Although avulsion is most commonly associated with hurricanes in light of their power to rapidly change the existing landscape, the Court concluded that the doctrine applies even if the avulsion is caused, as here, by the state through beach restoration or similar projects.

Delving into the Justices’ divergence. Despite the unanimous verdict for the state, four members of the Court delivered to the property rights movement a conceivably groundbreaking consolation prize. In an opinion separate from the one to which the entire Court acquiesced, Justice Scalia, joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, wrote in approval of the litigants’ theory by declaring the Takings Clause applicable not only to legislative and executive actions, but also to judicial actions. This plurality opinion stated, “The Takings Clause . . . is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor. . . . It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.” Thus, these four Justices said that, in future cases, a state court decision declaring that an “established” property right “no longer exists” may constitute a taking.

The remaining four Justices found the case resolvable in favor of the state without deciding the judicial takings issue. Justice Anthony Kennedy, joined by Justice Sonia Sotomayor, asserted that determining whether a judicial decision declaring property owners’ rights can amount to a taking is unnecessary so long as the Constitution’s Due Process Clause remains adequate to protect property owners from the judicial elimination of their existing property rights.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concluded that no taking had occurred under any conceivable test, such that the difficult questions surrounding judicial takings, or any other theory, need not be addressed. Notably, Justice John Paul Stevens recused himself from the case, presumably because he owns a waterfront condominium in Florida.

Effect on property law litigation. Alas, the four-two-two split on judicial takings leaves the issue unresolved, for no opinion commanded a majority of the Court. Still, although four Justices’ endorsement of the judicial takings theory is not binding precedent, it promises a surge of litigation. In this litigation, it could prove problematic that beyond acknowledging that no judicial taking transpired under the particular facts of Stop the Beach Renourishment, the plurality opinion provides little guidance on what is required to prove that a property right actually is “established.”

The concept of judicial takings also raises additional practical difficulties. Among others, three such difficulties ostensibly contributed to the cautious approach of Justices Kennedy, Sotomayor, Breyer, and Ginsburg. First, assessing judicial takings claims places federal courts in the position of rummaging into the intricacies of state property law, a task for which they arguably are ill equipped. Second, the theory of judicial takings seemingly contradicts the prohibition on lower federal court review of state supreme court decisions without specific congressional authorization. Third, the judicial takings theory brings into question the very judicial power of state courts. This seems to stand in stark contrast to the Court’s earlier pronouncement that the states, in declaring and interpreting their laws, serve as laboratories for the development of innovative approaches to modern problems.

Litigation in the near future will shape the existence and scope of the judicial takings theory supported, though not officially endorsed, in Stop the Beach Renourishment.

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This article is an abridged and edited version of one that originally appeared on page 10 of Probate & Property, November/December 2010 (24:6).

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